Tlingit artist told he's violating federal law

This undated photo provided by the Sealaska Heritage Institute shows a headdress made with flicker feathers by Tlingit carver Archive Cavanaugh. Federal authorities fined Cavanaugh for violating both the Migratory Bird Treaty Act and the Lacey Act for using feathers in his artwork. This is how the headdress looked before authorities returned it to him, minus the feathers. (AP Photo/Courtesy Sealaska Heritage Institute)

ANCHORAGE — For hundreds, perhaps thousands, of years, Natives of Southeast Alaska have paid artisans to create tools, clothing and ceremonial regalia adorned with feathers.

So contemporary Tlingit carver Archie Cavanaugh was startled last month when U.S. Fish and Wildlife Service personnel told him that items he had advertised for sale violated federal laws. Specifically: a carved hat featuring the wings and tail of a raven, and a headdress, or “shakee.át,” topped with the feathers of a flicker, a robin-size relative of the woodpecker.

“They told me that under the Migratory Bird Treaty Act they can charge me up to $10,000 and throw me in jail for a couple of years,” Cavanaugh said. “And they told me that under the Lacey Act they can charge me up to $100,000 and put me in jail for 10 years. It was very scary. I went into complete depression.”

In shock, he removed the ads from the Internet sites where they’d been posted and took the feathers off the items. But that only seemed to make the problem worse.

“They told me that I was tampering with evidence and that would be another charge,” he recounted. “I told them, ‘I was just trying to comply with you guys’ request.’”

Cavanaugh hired an attorney and sought advice from Rosita Worl, president of Sealaska Heritage Institute.

“He wasn’t just upset about the money and possibility of jail,” Worl said. “He told me, ‘If I’m a felon, I can’t vote. They’ll take away my father’s rifle. Every seal my family ever ate was shot with that rifle.’”

On Oct. 5 he settled for a fine of $2,005 and the equivalent of a ticket. The Fish & Wildlife Service returned the hat and headdress to him, but they kept the feathers.

“I’m thankful I survived with only a $2,000 fine,” Cavanaugh said. “But I’m still getting hit with something like post-traumatic stress syndrome.

“I had no idea this law existed. Nobody knew. I asked Fish (and) Wildlife, ‘Why did you not advertise this law?’”

Worl feels much the same way. Neither her group, the non-profit cultural arm of the Sealaska Corp., nor Southeast artists were aware of how the law applied to traditional Native art.

“We didn’t even know it was an issue,” she said. “We’ve just been doing things that we’ve been doing forever. We sent out word to our tribal members quickly that it is against the law to sell any arts and crafts with flicker feathers.”

“We certainly want to make sure we’re abiding by the law,” Worl said. “But I would have been much happier if Fish (and) Wildlife had come to us first.”

Bruce Woods, Fish and Wildlife spokesman for the Alaska Region, said the Lacey Act involves interstate commerce and the Migratory Bird Treaty Act is intended to prevent the commercialization of migratory birds.

“It makes it illegal to sell the feathers of any migratory bird,” he said. “That’s regardless of whether the sale is from Native to Native or non-Native or whatever.”

There are exceptions, he said. “If it’s a bird that is legally hunted, like waterfowl, it’s legal to possess the feathers or give them to someone. But it’s still illegal to sell them.”

Introduced game birds, like pheasant, are not covered by the law.

Cavanaugh, 61, won first place in the traditional category at the juried art show sponsored by Sealaska at this year’s Celebration in Juneau with an Eagle/Man mask. He’s also a musician whose latest CD, “Alaska Jazz,” came out this year. (See archiecavanaugh.com.) He stressed that he did not pay for the feathers and had never heard of anyone buying or selling feathers in his life — not in his hometown of Wrangell, not in Kake, where he grew up, not in Juneau where he now lives.

“The flicker feathers were given to me by a farmer in the midwest who found them on the ground, the way we find eagle feathers on the beach,” he said. “The raven came from an animal control officer who’s a friend of mine.”

The raven was found dead, he said. “I never killed anything.”

Cavanaugh says he’d like to see the Migratory Bird Treaty Act changed to create exemptions for Native-made arts and crafts such as in the Marine Mammal Protection Act, which allows Alaska Natives to sell work made from parts of protected animals. Worl said she hopes to open a discussion about that during the Alaska Federation of Natives Convention this week in Anchorage.

“But it’s going to be a long, tedious process,” she said.

Worl referred to the grueling effort leading to a recent Justice Department ruling clarifying the use of eagle feathers by Native Americans.

“We were happy about that,” said Worl. “It’s been a continuing issue for as long as I can remember. But it took a long time to resolve it.”

But now Cavanaugh’s case raises other concerns about traditional practices, she said, such as whether authorities will prohibit the sale of regalia with feathers within a tribal group.

“We view (such regalia) as ceremonial, with spiritual dimensions,” she said. “But I have no idea what Fish (and) Wildlife is going to do.”

Neither flickers nor ravens are considered endangered, Worl said. “But there may be (international) treaty issues.”

Cavanaugh warned that sellers and wearers alike could be charged as he was.

“Masks, headdresses, hats, the clothing people use in traditional gatherings, that’s all illegal if you bought it,” he said. “Our people are in danger if they have eagle feathers or down or raven or flicker feathers on regalia. If they purchased it, Fish (and) Wildlife can go after them.”